Case Report

Kimathi & Ors v Foreign & Commonwealth Office [2017] EWHC 2145 (QB)

Niazi Fetto appeared as a member of the FCO’s counsel team responding to the Claimants’ application to amend Particulars of Claim in 11 of the test cases in the Kenyan Emergency Group Litigation.

Stewart J generally refused amendments raising a new and different case, applying the principles in the leading decision of Swain-Mason v Mills and Reeve [2011] EWCA Civ 14.
The situation faced by the court was remarkable in two respects in particular. Firstly, the Claimants proferred no explanation for the delay in making their application. Secondly, they sought to dispense with statements of truth to support the amended pleadings on the basis that the amendments included changes of case inconsistent with the Claimants’ sworn evidence already given (but allegedly consistent with documentary evidence before the court).